German court grants inmates the right to possess 50 grams of cannabis

The Berlin Court of Appeal (KG) confirmed that people serving a prison sentence of at least six months are entitled to possess up to 50 grams of cannabis in their cell, as long as it's for personal use.

This decision, handed down on May 28, 2025, confirms that a prison cell can be considered a «habitual abode» within the meaning of the law. law on cannabis for personal use (KCanG), extending certain cannabis-related rights even behind bars.

A precedent-setting case

This decision follows the case of a man incarcerated since september 2023, who was found in possession of 45.06 grams of cannabis resin containing 13.64 grams of THC The cannabis was for personal use. Although criminal proceedings had initially been initiated against him, the Berlin-Tiergarten District Court dismissed the charges, citing’article 3, paragraph 2, sentence 1, no. 1 KCanG, which allows adults to carry up to 50 grams in their pockets. «habitual residence».

The district court concluded that a prison cell could be considered such a place of residence, given that the law defines habitual residence as a place where a person stays for a period that is not temporary, i.e. at least six consecutive months.

According to the court, «short interruptions» of the stay do not affect this classification. The involuntary nature of the imprisonment, it ruled, does not invalidate this definition.

The public prosecutor appeals

Not everyone agreed. The public prosecutor disputed this interpretation, arguing that the cannabis law was not intended to authorize possession in prisons. He invoked the’article 8, paragraph 2, of the code of criminal procedure, which generally uses a person's last known permanent address for jurisdictional purposes. On this basis, the public prosecutor asked for a stricter interpretation of the law, claiming that prison cells should not be considered private residences.

In addition, the public prosecutor expressed concern about the implications for the safety and order in prisons, suggesting that cannabis possession behind bars could complicate facility management.

Appeal court confirms broad interpretation

Despite these objections 5th Criminal Division of the Regional Court of Appeal upheld the decision of the Tiergarten District Court, stressing that it was the real-life living conditions, and not legal status or intent, which are decisive in defining the habitual residence within the meaning of the KCanG. The Court cited legislative documents the law's origin, stressing that it was drawn up on the basis of social and fiscal standards which focus on where a person actually lives rather than how they got there.

The court specified that «general considerations relating to security and order in the prison and the threat to the purpose of the prison» were not explicitly included in the law and therefore could not justify restricting the rights granted by the KCanG.

Possession yes, consumption and culture maybe not

If the court confirmed the right to own cannabis in prison cells, she made it clear that this did not amount to a right of first refusal. using cannabis while incarcerated. According to KG, the prison administrations remain fully empowered to enforce rules prohibiting consumption, citing institutional concerns.

The court stated that administrations may «generally prohibit the possession and consumption of cannabis in penal institutions and forensic treatment facilities, on the basis of applicable prison laws, for reasons of security and order in the institution».

It is interesting to note that the Court left open the question of whether the cannabis cultivation in prisons could benefit from legal protection. If the’article 9, paragraph 1, KCanG limits home cultivation to «private residential premises», However, it is not clear whether this definition includes or excludes cells. Future decisions may have to clarify this legal grey area!